Freedom of the Press as a Discrete Constitutional Guarantee

Oliphant, Benjamin, McGill Law Journal

3. Activity or Information in the Public Interest

The final definitional limit--that the protected activity must be in the public interest in the sense of serving the purpose underlying press freedom--further guarantees a link with the principles underlying section 2(b) and the objectives to which freedom of the press is directed. This purposive limit may serve to exclude from constitutionally protected status gratuitous press activity entirely divorced from the values underlying freedom of the press under section 2(b). As Justice McLachlin (as she then was) noted in Lessard, "it is not every state restriction on the press which infringes s. 2(6). Press activities which are not related to the values fundamental to freedom of the press may not merit Charter protection." (117) Where claimants engage in activity unmoored from the rationale behind press freedom, I argue that there is no justification for section 2(b) protection, and no section 1 balancing is required.

With respect to this final hurdle, a useful analogy can be drawn to cases where the effect (as opposed to the purpose) of state action constitutes a limit on freedom of expression. These cases require the claimant to demonstrate that the conduct in question is linked to an underlying value of 2(b)--seeking and attaining truth, participation in social and political decision-making, or individual self-fulfillment and human flourishing (118)-- in order to acquire protection. (119) If considered necessary, a claim of press freedom could be put through a similar test before protection is extended: does the activity for which protection is claimed serve the objective of press freedom by facilitating social and democratic discourse and by generally ensuring the public's right to know?

A public interest criterion so stated is necessarily vague: it asks whether the genre of conduct tends to serve no public interest, in the sense of ensuring the public's right to know. The ambit of this exception would be narrow--reporters cannot always be held to the highest standards of gentility--but it would tend to exclude particularly offensive and unproductive conduct. For example, the practice of voyeurism (120) might lose protection at this stage on the basis that little demonstrable public interest is served in clandestinely observing, photographing, or distributing images of, for example, a politician inside his or her home. This stage of the analysis also allows practices such as "[c]hequebook journalism", which seemed to trouble the Supreme Court in National Post, to be assessed for their compatibility with the purpose underlying press freedom. (121) While it is not clear to me that such conduct should be considered incompatible with the purposes of press freedom--chequebook journalism appears to as readily serve the public's right to know as does traditional investigative reporting--to the extent that a compelling argument can be made that it is contrary to or incompatible with the purpose of the press guarantee, it fails to receive protection at this stage. Such a public interest requirement serves as an exceptional safety valve to allow courts latitude to protect activity deemed sufficiently integral to the values and purpose underlying press freedom to warrant constitutional protection, without shielding all activity press-like entities might choose to undertake. (122)

There is another conception of public interest appearing in the case law which focuses directly on the content of the information being gathered for dissemination, (123) which is subtly different from focusing (as proposed above) on the social value of the newsgathering activity. Such a public interest limit assesses whether the type of information being collected is the kind that is in the public interest to disclose. While this article does not endorse such a definitional limit relating to the content of information being gathered, there are some benefits and downsides to this different conception of the public interest that deserve attention. …

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